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TMI Blog1983 (2) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... carriage permits (except in respect of routes or areas for which schemes have been published under Section 68-C of the Motor Vehicles Act, 1939) to all eligible applicants: Now, therefore, in exercise of the powers under Section 43-A of the Motor Vehicles Act, 1939, the Governor of Uttar Pradesh is pleased to direct that the stage carriage permits (except in respect of routes or areas for which schemes have been published under Section 68-C of the Motor Vehicles Act, 1939) shall be granted according to the provisions of the Act to all eligible applicants and there shall be no upper limit to the number of stage carriages for which permits may be granted. By Order Karnail Singh, Sachiv II. Notification No. 241 T/XXX-4-15-P/79 Dated : January 23, 1981 The Governor being satisfied that it is expedient in the public interest so to do, is pleased to direct in exercise of the powers under Section 43-A of the Motor Vehicles Act, 1939 (Act No. 4 of 1939) that while considering applications for stage carriage permits, the State Transport Authority or a Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port service by State transport undertakings in any area or on any route to the exclusion, complete or partial of other persons, construction, equipment and maintenance of motor vehicles, control of traffic, insurance of motor vehicles against third party risks and offences, penalties and procedure. The State Governments were entrusted with the duty of framing rules on various matters connected with the topics dealt with by the Act. The subject of regulation of motor vehicles being within the scope of Entry 35-mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied-in List III of the Seventh Schedule to the Constitution, various amendments were made from time to time by several State Legislatures with the assent of the President of India either adding to or modifying the provisions of the Act. Chapter IV of the Act which includes Section 42 to Section 68 contains provisions pertaining to the control of motor vehicles. Section 42 of the Act provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest of the public generally; (b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; (c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served. (d) the benefit to any particular locality or localities likely to be afforded by the service; (e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending; (f) the condition of the roads included in the proposed route or area; and shall also take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , any rival applicant, police authorities and local authorities. Any person who satisfies the qualifications mentioned in Section 64 of the Act and who is aggrieved by the resolution of the Regional Transport Authority may file an appeal before the State Transport Appellate Tribunal which should consist of a whole time judicial officer not below the rank of a District Judge. An order of a Regional Transport Authority or of a State Transport Authority against which no appeal can be filed is subject to revision by the State Transport Appellate Tribunal under Section 64-A of the Act. Sub-section 1 of Section 43 of the Act which confers power on the State Government to control transport reads thus: 43. Power to State Government to control transport- (1) A State Government having regard to: (a) the advantages offered to the public, trade and industry by the development of motor transport, (b) the desirability of coordinating road and rail transport, (c) the desirability of preventing the deterioration of the road system, and (d) the desirability of preventing uneconomic competition among motor veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad transport to the State Transport Authority or to any Regional Transport Authority, and such Transport Authority shall give effect to all such directions. (2) Without prejudice to the generality of the foregoing power, where the State Government is of opinion that it is in the public interest to grant stage carriage permits (except in respect of routes or areas for which schemes have been published under Section 68(C) or contract carriage permits or public carrier permits to all eligible applicants, it may by notification in the Gazette issue a direction accordingly, and thereupon all transport authorities as well as the State Transport Appellate Tribunal constituted under Section 64 shall proceed to consider and decide all applications, appeals and revisions in that behalf (including any pending applications, appeals and revisions) as if- (a) in Section 47- (i) for Sub-section 1 the following Sub-sections were substituted: (ii) A Regional Transport Authority shall in considering an application for a stage carriage permit, have regard to the following matters, namely- (a) the interest of the public genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1939 the Governor is pleased to direct that stage carriage permits (except in respect of routes or areas aforesaid) contract carriage permits and public carrier permits shall be granted according to the provisions of the said Act to all eligible applicants. 8. The validity of Section 43-A of the Act introduced by the U.P. Legislature and of the Notification dated March 30, 1972 issued by the Government of Uttar Pradesh pursuant to that section was questioned in some writ petitions filed by some motor operators in the High Court of Allahabad. Those petitions were dismissed. On appeal this Court upheld the validity of Section 43-A of the Act as well as the Notification by its judgment in Hans Raj Kehar and Ors. v. The State of U.P. and Ors. [1975]2SCR916 which was delivered on December 4, 1974. Within about three and half years from the date of the above said notification the Government of Uttar Pradesh realised that it was necessary to review the whole question of issuing permits to all eligible applicants. Accordingly the State Government issued a Notification on September 24, 1975 which ran as follows: Whereas, in exercise of the power conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ordinance was replaced by the Uttar Pradesh Act 15 of 1976. By this Act, Sub-section 2 of Section 43-A which had been added in 1972 was substituted with retrospective effect from the date of its original enactment. Section 43-A after it was amended by the U.P. Act 15 of 1976 read as under: -A. Power of State Government to issue directions to Transport Authorities-(1) The State Government may issue such directions of a general character as it may consider necessary or expedient in the public interest in respect of any matter relating to road transport to the State Transport Authority or to any Regional Transport Authority, and such Transport Authority shall give effect to all such directions. (2) Without prejudice to the generality of the provisions of Sub-section (1) such directions may be given in respect of any of the following matters, namely: (a) the number of stage carriage or contract carriage permits that may be granted in respect of any route or area. (b) the preference or the order of preference to be given to or the quota to be fixed for, specially deserving categories, such as Ex. Army personnel, educated unempl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of Uttar Pradesh issued a Notification containing directions on March 12, 1976 in the following terms: Whereas, in exercise of the powers conferred by Section 43-A of the M.V. Act, 1939, the State Government had by a notification No. 4251-T/XXX-4-9P/72 dated September 24.1975, as amended by notification No. 4530-T/XXX-4-75 dated October 6,1975 postponed the consideration of applications for permits by any transport authority in respect of non-notified routes until further directions in this behalf of the State Government. Now, therefore, in exercise of the powers conferred by the said Section 43-A(2) of the M.V. Act, 1939 read with Section 21 of the General Clauses Act, 1904, the Governor is pleased to direct: (1) That the S.T.A. and R.T. As. while fixing the number of Additional Stage Carriage permits to be issued at a given time on non-notified routes, shall in addition to the consideration of the matter mentioned in Sub-section 1 of Section 47 of the M.V. Act, ensure that the operation of the total number of stage carriages on any route, taking into consideration the existing as well as the additional permits proposed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons belonging to economically weaker sections of the community have been granted stage carriage permits in that State: (a) reserve in that State such percentage of stage carriage permits, as may be prescribed, for persons belonging to economically weaker sections of the community; or (b) notwithstanding anything contained in the proviso to Sub-section (1), give preference, in such manner as may be prescribed, to applications for stage carriage permits from such person. Explanation I-In this Section and in Sections 55, 63 and 68, a person shall be deemed to belong to economically weaker section of the community, if and only if, on the prescribed date: (a) the annual income of such person together with the annual income, if any, of the members of his family; or (b) the extent of land (whether in one class or in different classes), held by such person together with that, if any, held by the members of his family; or (c) the annual income and the extent of land aforesaid, does, or do not exceed such limit as may be prescribed. Explanation II.-For the purposes of Explanation I, fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rative society, or partners of the firm, belong to the Scheduled Castes or the Scheduled Tribes. (1G) The circumstances under which, the manner in which, and the extent to which, reservation under Sub-section (1A) and Clause (a) of Sub-section (1C) may be carried forward shall be such as may be prescribed. (1H) Notwithstanding anything contained in this Section, an application for stage carriage permit from a State transport undertaking for operating in any inter-State route shall be given preference over all other applications: Provided that the authority shall not grant a permit under this Sub-section unless it is satisfied that the State transport undertaking would be able to operate in the inter-State route without detriment to its responsibility for providing efficient and adequate road transport service in any notified area or noticed route as is referred to in Sub-section 3 of Section 68D where the undertaking operates the service. Explanation.-For the purposes of this Sub-section, 'inter-State route' means any route lying continuously in two or more States. 17. By the amendment of Section 47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to those later amendments made by Parliament. Curiously the State Government issued on January 10, 1981 and January 23, 1981 the impugned notifications which are set out at the commencement of this judgment. By the first notification, the State Government directed the Regional Transport Authorities of the State of Uttar Pradesh to issue stage carriage permits (except in respect of routes or areas for which schemes had been published under Section 68-C of the Act) to all eligible applicants and that there should be no upper limit to the number of stage carriages for which permits might be provided. By the second impugned notification dated January 23, 1981, the State Government directed the State Transport Authority and the Regional Transport Authorities to have regard only to matters referred to is Clauses (a), (b), (d) and (f) of Sub-section 1 of Section 47 of the Act and should also take into consideration representation made by the local authority or police authority within whose jurisdiction any part of the proposed route or area lay. It also directed that Section 57 should be deemed to have been complied with if the Transport Authority concerned intimated the particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grant of permits would be vitiated, the High Court observed as follows: The question of reservation, however, arises only in those cases where the seats or articles are limited for distribution or allotment but where there is no limit or no fixed number, the question of reservation will not arise. In that event, every body would be served according to his need and aspiration. Hence, if under Section 43-A a direction has been made for grant of stage carriage permit to all eligible applicants without putting any fixed number for the vehicles to ply, the interest of the Scheduled Castes and Scheduled Tribes would be sufficiently safeguarded. A member of the Scheduled Caste or Scheduled Tribe as well as economically weaker section of the community would as much be entitled to get a permit to run his vehicle as a member of any other community. It is where the seats are limited that the legislature thought of making a provision to reserve the grant of permits in their favour to the extent of 25 percent. The principle behind reservation in the grant of stage carriage permits employed by the Parliament appears to be the same as in reserving appointment in the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision would not apply now as there is a clear departure made by the Legislature from that policy when it enacted the new Sub-section (2) of Section 43-A. In the face of this amendment by which the former Sub-section (2) of, Section 43-A which specifically authorised he State Government when it was satisfied that it was necessary to do so in the public interest to issue directions to the Transport Authorities to grant permits to all eligible applicants was deliberately taken away by the State Legislature, the High Court was wrong in holding that such power was still available under Sub-section (1) of Section 43-A of the Act which was widely worded. The High Court shut its eyes to the realities of the situation when it observed that in this case the contents of the Statement of Objects and Reasons were irrelevant as the provisions of Section 43-A(1) were very clear. Even without the aid of the Statement of Objects and Reasons it has to be held that by the substitution of the former Sub-section (2) by the new Sub-section (2) in Section 43-A the Legislature clearly expressed itself against the policy of granting permits to all eligible applicants without any consideration to the nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the public is an over simplification of a problem with myriad facts affecting the general public. If we run through the various provisions of the Act it becomes clear how much attention is given by it to various matters affecting public interest. There are provisions relating to licensing of drivers on the basis of their competence, licensing of conductors, specifications to which the motor vehicles should conform, coordination of road and rail transport, prevention of deterioration of the road system, prevention of uneconomic competition among motor vehicles, fixation of reasonable fare, compliance by motor vehicles with the prescribed time table, construction of bus stands with necessary amenities, maintenance of standards of comfort and cleanliness in the vehicles, development of inter-State tourist traffic and several other matters with the object of making available adequate and efficient transport facilities to all parts of the country. Any direction given by the State Government under Section 43-A of the Act should, therefore, be in conformity with all matters regarding which the statute has made provision. In this situation to say that any number of permits can be issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly outside the scope of the Act. The first notification which directs that all eligible applicants shall be granted permits and that there shall be no upper limit to the number of permits to be issued for stage carriages and the second notification which says that the Transport Authorities shall have regard only to matters referred to in Clauses (a), (b), (d) and (f) of Sub-section (1) of Section 47 of the Act and thereby precludes the Transport Authorities to take into consideration matters contained in the proviso to Section 47(1) and in Sub-section (1A) to (1H) of Section 47 of the Act are ultra vires the Act and they are liable to be struck down. 23. We, therefore, allow these appeals, set aside the judgment of the High Court in each of these cases and declare that the Notification No. 68 T/XXX-4-15 KM/79 dated January 10, 1981 and the Notification No. 241 T/XXX-4-15-P/79 dated January 23,1981 issued by the Government of the State of Uttar Pradesh under Section 43-A of the Act are ultra vires and, therefore, void and ineffective. 24. In the circumstances of the case, there will be no order as to costs. - - TaxTMI - TMITax - Indian L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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